ESTABLISHING PATERNITY AGAINST A DECEASED NCP

Suppose a mom (CP) visits her local state child support office and alleges that a certain man (NCP) is her child’s father. Then suppose that midway through the adjudication process, the NCP dies before a DNA test could be administered. In most cases child support is typically void at this point. Most child support offices would just close CP’s case. However, could the child support office help CP establish paternity for her child against the deceased NCP anyway (for heirship purposes or even to receive support from NCP’s estate)? If so, how? Especially given the fact that it is a probate court, not a family court, that is typically the best venue for hearing cases involving deceased individuals, and state child support offices do not practice law before probate courts.

In some rare circumstances,  IV-D child support administrative courts or family courts can hear paternity actions against the deceased if the deceased died after the start of the paternity legal action. In other words,

In Texas for example,  per Texas Rule of Civil Procedure 152 (Death of Defendant), as long as the NCP was served with a paternity action while still alive, the clerk of courts may issue what’s known as a “scire facias” on the dead NCP’s estate rep or heir, and substitute that person in the case on behalf of the deceased. The substitute person can stand for NCP, although they will not be on the hook for paying child support.

Whether or not a judge proceeds to actually adjudicate parentage against a deceased NCP is anyone’s guess. Each jurisdiction is different as is each judge. Unique still are the different methods a judge could order to determine paternity (DNA testing relatives, exhumations, testing objects like the deceased NCP’s discarded nail clippings, etc.).

Handling this issue probably warrants hiring a private attorney (family or probate law) since state child support offices may be limited in what they can do. If the above is your scenario, run your specific set of facts by an attorney to get their opinion on next steps.